| People v Perez-Rodriguez |
| 2018 NY Slip Op 07460 [166 AD3d 659] |
| November 7, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Carlos Perez-Rodriguez, Appellant. |
Jeffrey A. Chabrowe, New York, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Sholom J.Twersky of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Deborah A. Dowling, J.), rendered January 30, 2013, convicting him of robbery in thesecond degree (two counts), upon a jury verdict, and imposing sentence. The appealbrings up for review the denial, after a hearing (Michael Gary, J.), of that branch of thedefendant's omnibus motion which was to suppress identification evidence.
Ordered that the judgment is affirmed.
The defendant improperly relies, in part, upon trial testimony to challenge thehearing court's determination denying suppression of identification evidence. Trialtestimony may not be considered in evaluating a suppression ruling on appeal (seePeople v Abrew, 95 NY2d 806, 808 [2000]; People v Robinson, 138 AD3d 764, 764 [2016]; People v Jerry, 126 AD3d1001, 1002 [2015]). Contrary to the defendant's contention, the hearing courtproperly denied that branch of his omnibus motion which was to suppress identificationtestimony. The hearing testimony demonstrated that the eyewitnesses viewedphotographs shown to them by private individuals prior to a police-arranged lineup atwhich they identified the defendant. Where it is alleged that the conduct of privateindividuals rendered an identification procedure unduly suggestive, there is no "per se"constitutional rule of exclusion (People v Marte, 12 NY3d 583, 589-590 [2009]). Sincethere is no evidence here that the witnesses' earlier identification of a photograph of thedefendant resulted in unconstitutional taint at the police-arranged identificationprocedure, there is no basis to suppress the identification evidence (see People v Williams, 139AD3d 885 [2016]; Matterof Johnny H., 111 AD3d 576, 576 [2013]).
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony,and observe demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; Peoplev Bleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we aresatisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633 [2006]).
The defendant's contention that the trial court's limitation of his cross-examination ofthe prosecution's witnesses deprived him of his constitutional right to present a defense is[*2]unpreserved for appellate review and, in any event,without merit (see CPL 470.05 [2]; People v Jimenez, 148 AD3d 1054, 1055 [2017]; People v May, 138 AD3d1024, 1026 [2016]).
The defendant's remaining contentions are without merit. Dillon, J.P., Leventhal,Roman and Duffy, JJ., concur.